Sisson v. Jankowski - 148 N.H. 503, 809 A.2d 1265 (2002)

Rule:

The potential for a conflict between the interests of a prospective beneficiary and a testator militates against recognizing a duty on the part of an attorney to a prospective beneficiary which requires the attorney to ensure that a client executes his will promptly. It is the potential for conflict that is determinative, not the existence of an actual conflict. Whereas a testator and the beneficiary of a will have a mutual interest in ensuring that an attorney drafts the will non-negligently, a prospective beneficiary may be interested in the will's prompt execution while a testator or testatrix may be interested in having sufficient time to consider and understand his or her estate planning options. Confronting a last will and testament can produce complex psychological demands on a client that may require considerable periods of reflection. An attorney frequently prepares multiple drafts of a will before a client is reconciled to the result. The most simple distributive provisions may be the most difficult for a client to accept. Creating a duty could compromise an attorney's duty of undivided loyalty to a client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options.

Facts:

A doctor retained an attorney to prepare his will, and informed the attorney that he was suffering from cancer, did not want to die intestate, and wanted to leave his entire estate to one of his brothers. The doctor also told the attorney that he was estranged from another brother and wanted to ensure that none of his property passed to that brother. The attorney prepared a will and visited the doctor over a month later, but instead of having the doctor sign the will, she took it with her so she could add a contingent-beneficiary clause. The attorney revised the will and visited the doctor three days later, but did not have the doctor execute the will because she thought he was not competent to do so. The doctor died before he executed his will and his estate passed by intestate succession to the brother he wanted to name as his sole beneficiary, the estranged brother, and the children of a third brother who had died. Plaintiff beneficiary filed a malpractice action in the United States District Court for the District of New Hampshire against the attorney and a law firm where the attorney worked, alleging that he did not receive property which his brother, a doctor, intended to leave to him because the attorney negligently failed to ensure that the doctor executed his will. The district court transferred the case to the state supreme court.

Issue:

Under the New Hampshire law and the facts as pled in plaintiff's verified complaint, did the attorney's negligent failure to arrange for his or her client's timely execution of a will and/or an attorney's failure to provide reasonable professional advice with respect to the client's testamentary options (e.g., the ability to cure a draft will's lack of a contingent beneficiary clause by simply inserting a hand-written provision), which failure proximately caused the client to die intestate, give rise to a viable common law claim against that attorney by an intended beneficiary of the unexecuted will?

Answer:

No.

Conclusion:

The court concluded that the potential for conflict between the interests of a prospective beneficiary and a testator militates against recognizing a duty of care. Whereas a testator and the beneficiary of a will have a mutual interest in ensuring that an attorney drafts the will non-negligently, a prospective beneficiary may be interested in the will's prompt execution, while the testator or testatrix may be interested in having sufficient time to consider and understand his or her estate planning options. Creating a duty, even under the unfortunate circumstances of this case, could compromise the attorney's duty of undivided loyalty to the client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options. On balance, we conclude that the risk of interfering with the attorney's duty of undivided loyalty to the client exceeds the risk of harm to the prospective beneficiary. For these reasons, the court held that an attorney does not owe a duty of care to a prospective will beneficiary to have the will executed promptly.